FCC Record, Volume 2, No. 9, Pages 2437 to 2750, April 27 - May 8, 1987 Page: 2,705
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2 FCC Rcd Vol. 9
Federal Communications Commission Record
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Licensee of Station WYSP(FM),
MEMORANDUM OPINION AND ORDER
Adopted: April 16, 1987;
Released: April 29, 1987
By The Commission:
1. The Commission has before it three complaints with
respect to certain programming broadcast on Station
WYSP(FM). Philadelphia, Pennsylvania, which allegedly
violated Title 18, United States Code. Section 1464. Under
Section 503(b)(1)(D) of the Communications Act of 1934.
as amended, the Commission has authority to impose a
forfeiture or other sanction upon a licensee who has
violated Section 1464. At issue is whether the broadcasts
in question constitute a violation of Section 1464 and. if
so, what penalties, if any, should be imposed upon Infinity
Broadcasting Corporation of Pennsylvania ("Infinity"),
licensee of WYSP(FM).
2. On November 14. 1986, the Chief. Mass Media
Bureau, directed a letter to Infinity seeking comments on
three specific complaints received by the Commission
concerning material aired on a program hosted by
WYSP(FM) announcer, Howard Stern.1 Those complaints
alleged the broadcast of obscene or indecent material in
violation of 18 U.S.C. 14642 on Mr. Stern's morning
program. which originates at Infinity's co-owned Station
WXRK(FM), New York, New York. and is simulcast on
3. In its December 22, 1986, response, Infinity urged
the Commission to conclude this inquiry without further
action. The response notes generally that the Stern show
is a wide-ranging program featuring comment and discussion
based on humor and satire and that the program has
been broadcast in several major markets for almost five
years on weekdays. It observes further that the Commission
has traditionally exercised great restraint in evaluating
allegations concerning the broadcast of obscene or
indecent material and has narrowly interpreted
precedents in this area. Thus. the Commission has emphasized
that sex is not a forbidden subject on the broadcast
medium and that it will not proscribe programming
merely because it is considered provocative or offensive.
Moreover, the response states that the Commission has
recently adopted a policy of deferring to local authorities
in the first instance regarding obscenity;3 the licensee
urges that as a matter of logic the same approach should
be followed for indecency. Because there has been no
local adjudication concerning these broadcasts. Infinity
maintains that this proceeding should be summarily terminated.
4. In any event, Infinity contends that Mr. Stern's
broadcasts are permissible under established judicial and
administrative precedents. It points out that the Commission's
staff has consistently ruled that Mr. Stern's use of
the type of sexually-oriented language now complained of
is protected speech. In doing so, the staff has distinguished
between patently offensive expletives and vulgarities such
as those found indecent in the Pacifica case4 and the
incidental use of double entendre and sexual innuendo,
which the staff has found outside the ambit of Pacifica's
indecency definition. Infinity contends that the material
at issue consists only of the latter. noting that there have
been no complaints that Mr. Stern used the patently
offensive language at issue in Pacifica. Additionally, it
points to ratings data indicating sustained appeal among a
significant segment of the listening audience for Mr.
Stern's program and to other expressions of support received
by Infinity as illustrating acceptance of his program
under local community standards. Infinity also
asserts that intervention in this case would be inconsistent
with the Commission's marketplace approach in other
5. In conclusion, Infinity asserts that it has established
strict controls to preclude the broadcast of programming
in violation of 18 U.S.C. 1464, including the words at
issue in Pacifica. Should the Commission decide to provide
new guidance regarding obscene and indecent broadcasts
that is consistent with the First Amendment and
Section 326 of the Communications Act. Infinity advises
that it will promptly revise its internal controls to ensure
compliance with that new guidance.
6. Initially, we acknowledge that Section 326 and the
First Amendment dictate a careful and restrained approach
with regard to review of matters involving broadcast
programming. Thus, the Commission has consistently
said that it "will not
abandon program material because it is offensive to some
or even a substantial number of listeners."5 Nonetheless,
it is well settled that the Commission is empowered to
take action with regard to programming proscribed by 18
7. Under the prevailing test. indecent speech is
"language that describes, in terms patently offensive as
measured by contemporary community standards for the
broadcast medium, sexual or excretory activities and organs."7
Such indecent speech is actionable at times of the
day when there is a reasonable risk that children may be
in the audience. Pacifica Foundation, 56 FCC 2d 94, 98
(1975). Speech that is indecent must involve more than
the isolated use of an offensive word. See . e. g., FCC v.
Pacifica Foundation. 438 U.S. 726. 750 (1978). Further,
what is indecent "is largely a function of context" and
cannot adequately be judged in the abstract.8 Id. at 742.
The crux of Infinity's argument appears to be that only
concentrated and repeated use of the specific offensive
words at issue in the Pacifica case would support a
finding that programming contravenes 18 U.S.C. 1464.
Infinity distinguishes that type of speech, which it asserts
Mr. Stern has not used, from what it characterizes as his
incidental use of sexually-oriented language, sexual innuendo
and double entendre.
8. We do not accept Infinity's interpretation of the test
governing indecency. We take this occasion. however, to
clarify prior Commission statements regarding indecency."
As an initial matter, analysis of whether particular speech
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 9, Pages 2437 to 2750, April 27 - May 8, 1987, book, May 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1602/m1/274/: accessed November 16, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.